Court File and Parties

Court File No.: CR-24-90000141-0000 Date: 2025-07-28 Ontario Superior Court of Justice

Between: His Majesty the King – and – Wayne Belanger

Counsel:

• Martin Tooke, Counsel for the Public Prosecution Service of Canada
• Stephen DiClemente, Counsel for Wayne Belanger

Heard: February 5 and May 16, 2025

Before: S. Himel J.

Reasons for Sentence

Plea and Procedural Background

[1] Wayne Belanger entered pleas of guilty to one count of trafficking fentanyl contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA") and one count of possession of fentanyl for the purpose of trafficking contrary to s. 5(2) of the CDSA. He had elected to be tried by a judge sitting alone.

[2] The plea inquiry pursuant to s. 606(1) of the Criminal Code, R.S.C., 1985, c. C-46 (the "Code"), was satisfied. Mr. Belanger confirmed that he was entering the pleas voluntarily, that he understood that the plea was an admission of the essential elements of the offence, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea, and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence.

[3] Following the pleas of guilty, counsel requested, and I ordered that a Gladue Report be prepared. However, on April 1, 2025, the Aboriginal Legal Services wrote that they have made inquiries and for reasons outlined in their letter, which included that they could not confirm registration, they were unable to prepare a Gladue Report for Mr. Belanger. Counsel for Mr. Belanger advised that he was content to rely on a pre-sentence report prepared in 2022 and provide the court with additional materials and submissions. Counsel have made their submissions on sentence. The following are my reasons for sentence.

Factual Background

[4] The facts were admitted pursuant to s. 655 of the Code. On May 12, 2023, an undercover officer contacted a male known as "DJ" (later believed to be Adrian Halley) by phone and the two had a drug related conversation during which time the male agreed to sell the officer fentanyl. It was agreed that they would meet in the area of 93 Edgewood Avenue in the City of Toronto.

[5] Later that day, the undercover officer attended the area and parked his vehicle in front of 93 Edgewood Avenue. A short time later, Mr. Belanger exited from 93 Edgewood Avenue and approached the driver's side of the undercover vehicle. Mr. Belanger then provided the officer with 0.98 grams of fentanyl through the window in exchange for $200 Canadian currency of pre-recorded buy money. Mr. Belanger then returned to the side of 93 Edgewood Avenue.

[6] On June 5, 2023, the same undercover officer contacted "DJ" by phone using the same number as the previous date. The two had a drug related conversation during which time the male agreed to sell the undercover officer fentanyl. It was agreed that they would meet in the area of 93 Edgewood Avenue. Later that day, the officer attended the area and parked his vehicle outside of 93 Edgewood Avenue. Police observed Mr. Belanger exit the south side of 93 Edgewood and walk westbound toward the undercover officer's vehicle. He approached the vehicle and provided the officer with 1.06 grams of fentanyl through the window in exchange for $200 Canadian currency of pre-recorded buy money.

[7] Following the transaction, police observed Mr. Belanger return to the address and take the stairs up to the second floor. Police later spoke with the property manager of the building who advised that Mr. Belanger was residing in unit 210. The property manager told police that she had seen Mr. Belanger in unit 210 as recently as two days ago. The leaseholder of the unit was Mr. Belanger's previous surety, Frank Cree.

[8] On June 23, 2023, the same undercover officer contacted "DJ" by phone, using the same number as the previous dates. The two had a drug related conversation during which time the male agreed to sell the undercover officer fentanyl. It was agreed that they would meet in the area of 93 Edgewood Avenue. Later that day, the officer attended the area of 93 Edgewood Avenue. Mr. Belanger exited from the south side of 93 Edgewood Avenue and approached the driver's side of the undercover vehicle. Mr. Belanger then provided the officer with 1.50 grams of fentanyl through the window in exchange for $200 Canadian currency of pre-recorded buy money.

[9] Immediately following the transaction, Mr. Belanger was placed under arrest beside the vehicle. Police searched him incident to arrest and located $200 in pre-recorded buy money, 0.30 grams of fentanyl packaged in three separate bags (0.1 gram per bag), 2.80 grams of crystal methamphetamine, keys to apartment 210 and $50 Canadian currency.

[10] Following the arrest, police executed a search warrant at unit 210, 93 Edgewood Avenue using a key seized from Mr. Belanger at the time of the arrest. Upon execution of the warrant, police located 409.60 grams of fentanyl in the dresser separated in two quantities, a "Probation and Parole" order in the name of Wayne Belanger on top of the dresser, two digital scales in the top drawer and drug packaging, including dime bags. Police also located a cell phone on the kitchen table.

[11] Mr. Belanger's girlfriend, Lucia Lamanna, was found in the apartment at the time of the warrant execution. She provided a statement to police, indicating that her boyfriend, Mr. Belanger, was residing at the address with Frank Cree. The drugs in the apartment were not possessed by Ms. Lamanna.

[12] The 409.60 grams of fentanyl found in Unit 210, 93 Edgewood Avenue were possessed by Mr. Belanger for the purpose of trafficking.

Evidence at the Sentencing Hearing

[13] Crown counsel, Mr. Tooke, filed an Agreed Statement of Fact in accordance with s. 655 of the Code and it has been marked as an exhibit. Mr. Belanger has a previous criminal record which was filed by the Crown. On February 19, 2008, he was convicted of fail to comply with recognizance (three counts) and received one day on each charge concurrent. On December 24, 2012, he was convicted of fail to comply with recognizance and received a $25 fine in addition to two days of pre-sentence custody. On September 12, 2013, he was convicted of fail to comply with recognizance and possession of a Schedule II substance and received a suspended sentence and 12 months of probation. On September 16, 2022, he was convicted of possession of a Schedule I substance for the purpose of trafficking and received an 18-month conditional sentence and a s. 109 order.

[14] As mentioned above, in that there was no Gladue Report available, counsel agreed that the pre-sentence report prepared on July 18, 2022, with reference to another matter, should be filed as an exhibit and utilized at this sentencing hearing.

[15] Counsel for Mr. Belanger, Mr. DiClemente, submitted records from the Toronto South Detention Centre and the Toronto East Detention Centre regarding lockdowns. I will comment on these documents later in my reasons. He also submitted two letters from Mr. Belanger (one addressing the harsh conditions while in custody, the other explaining that he was involved in the offences to support his drug habit). He also outlined his attempts at rehabilitation by attending programs at the jail and through the John Howard Society. He filed two letters, one which says that he may be volunteering at the local church which supplies food, clothing, and furniture to people in need once he is out of custody. The other is a letter from the Toronto Health Department dated May 6, 2024, which stated that Mr. Belanger was in contact with someone diagnosed with infectious tuberculosis.

[16] Mr. Belanger spoke at the conclusion of the sentencing hearing, apologizing for his actions and indicating his desire to attend counselling. His counsel read aloud to the court the letter written by Mr. Belanger.

Positions of the Parties

Position of the Crown

[17] Crown counsel, Mr. Tooke, submits that an appropriate sentence in this case is one of 10 years of imprisonment for the possession of fentanyl for the purpose of trafficking offence (count #7 involving 409 grams on June 23, 2023) and three years for the trafficking offence (count #1 involving trafficking to an undercover police officer on May 12, 2023) to be imposed on a concurrent basis, less credit for pre-sentence custody in accordance with R. v. Summers, 2014 SCC 26, [2014] S.C.R. 575. Mr. Tooke acknowledged that there should be some credit for harsh conditions during pre-sentence custody in accordance with R. v. Duncan, 2016 ONCA 754, 133 W.C.B. (2d) 367 and R. v. Marshall, 2021 ONCA 344, 174 W.C.B. (2d) 88.

[18] Mr. Belanger has been in custody since his arrest on June 23, 2023, which, as of the date of the sentencing hearing would be 695 days. At 1.5:1, he would receive credit of 1,042.5 days for pre-sentence custody. Mr. Tooke also asks the court to impose an order for a sample of his DNA to be taken pursuant to s. 487.051(3) of the Code, a weapons prohibition order under s. 109 for life and a forfeiture order in relation to the scales, cell phone, $50 cash and a black change pouch that were seized on arrest.

[19] Crown counsel argues that this sentence would recognize the principles of sentencing set out in s. 718 of the Code and the jurisprudence which emphasizes denunciation and deterrence for sentencing for fentanyl trafficking offences. Mr. Tooke submits that the principle of restraint would also be recognized by capping the sentence at 10 years although there are some cases that suggest a higher sentence. Here, the quantity of fentanyl involved was 408 grams which is a very large amount.

[20] Mr. Belanger has two prior convictions for CDSA offences. His most recent conviction was in 2022. For that offence, he received an 18-month conditional sentence for possession of methamphetamine for the purpose of trafficking. While he was serving that sentence, he committed these offences. That is an aggravating factor on sentencing. The mitigating factors are that Mr. Belanger describes himself as an addict and that he has entered a guilty plea. While this guilty plea was not entered at the earliest opportunity, he has demonstrated remorse.

[21] Mr. Tooke submitted a number of sentencing decisions regarding possession for the purpose of trafficking and trafficking in fentanyl. He referenced R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, where the Supreme Court addressed the issue of sentencing for trafficking in large scale commercial operations dealing with fentanyl. In this decision, the court discussed the harms caused by fentanyl. The court described fentanyl as, "highly addictive substance, which, when taken outside of controlled medical environments, puts its users at risk of serious harm, including brain damage, organ damage, coma and death": at para. 94. It noted because the "harms caused by the substance speak directly to the gravity of the offence, appellate courts may step in to provide guidance to ensure sentences reflect those harms": at para. 58. In that case, Mr. Parranto was in possession of 485 grams of fentanyl, a quantity which was worth $200 per gram at that time. Using that figure, Mr. Belanger was in possession of $20,000 worth of fentanyl in his apartment. In Parranto, the Supreme Court noted that many courts have described fentanyl trafficking as a national crisis because this activity is so deadly, and this description is "reflective of an increased understanding of the gravity of the harm it causes": at para. 96.

[22] Mr. Tooke points out that in Parranto, Mr. Felix was the directing mind of the drug trafficking operation in Fort McMurray and operated a dial-a-dope-operation with runners. The court described Mr. Parranto and Mr. Felix as wholesale commercial level traffickers. The operation in Parranto included "runners" who filled "orders from the stash location and [remitted] the proceeds to a 'boss,' who then, in turn, remitted the money to Mr. Felix weekly": at para. 63. Here too, Mr. Belanger was a runner who was part of a wholesale commercial trafficking operation and was directed by another person who received the orders on the phone.

[23] The Supreme Court noted that the range for a commercial operation of trafficking in fentanyl is eight to 15 years.

[24] In R. v. MMA, 2018 ABQB 250, 146 W.C.B. (2d) 523, E.A. Hughes J. of the Alberta Court of Queen's Bench determined that a fit sentence for possession for the purpose of trafficking in fentanyl was seven years and gave credit for half the sentence for cooperation with police: at para. 2. In the judgment, Hughes J. highlighted that the offender was a runner who received drugs and delivered them to a purchaser. When the accused in that case was arrested, the police searched him and his residence. Through the search, they located $9,930 in cash, a weigh scale, 68.6 grams of cocaine, 797 pills, 226.3 grams of fentanyl and 48.4 grams of phenacetin, which is a common cutting agent for cocaine. Hughes J. wrote about the dangers of fentanyl and the reports of death by fentanyl overdoses in Alberta. She reviewed jurisprudence from Alberta, the Northwest Territories and Ontario. She cited R. v. Baks, 2015 ONCA 560, 123 W.C.B. (2d) 377, where the accused was sentenced to six years, R. v. Sinclair, 2016 ONCA 683, 132 W.C.B. (2d) 85, where the offender was sentenced to eight years and R. v. Loor, 2017 ONCA 696, 141 W.C.B. (2d) 618, where the offender was sentenced to six years.

[25] Mr. Tooke has distinguished this case at bar from MMA. In doing so, he emphasized that in MMA, the offender was youthful, had no criminal record and expressed remorse by entering guilty pleas. Mr. Belanger is 38 years old, is a repeat offender and the amount of fentanyl involved in his case is twice the amount than in MMA. Furthermore, Mr. Belanger committed these offences while he was still serving a conditional sentence.

[26] Mr. Tooke submits that the fact that Mr. Belanger was a runner is not a mitigating factor. That role is an important one in the distribution of the drugs. Crown counsel also submits that Mr. Belanger has had multiple opportunities in the past to address his addiction and did not take steps towards his rehabilitation.

[27] In the case of R. v. Gil, 2021 ONCJ 224, Julie I. Bourgeois J. sentenced the offender for possession of 276.2 grams of fentanyl to a sentence of eight and one-half years and four years of imprisonment concurrent for possession of proceeds of crime over $5,000 ($10,000 was found in his possession). The court noted that he was youthful and had pleaded guilty, but the aggravating factors were the amount of the drugs, that he was bound by a protection order at the time, that he was operating near a daycare and that he had a related criminal record. The court held that the paramount considerations were denunciation and deterrence.

[28] In R. v. Disher, 2020 ONCA 710, the Ontario Court of Appeal allowed an appeal of sentence and reduced a 12-year sentence imposed at trial to eight years for possession of heroin, fentanyl and derivatives of fentanyl (42 grams of fentanyl) for the purpose of trafficking where the offender had a serious criminal record that spanned 15 years and was convicted of breaching while on a recognizance for other trafficking charges. The mitigating factors were that he had been addicted to crystal methamphetamine, that he pleaded guilty on the first day of trial and that he showed some rehabilitative potential. Justice Gillese wrote that the caselaw on sentences for trafficking in fentanyl was still developing at that time but that, "Bearing in mind these notes of caution, the caselaw indicates that a sentence of eight years is consistent with that received by offenders similarly situated to Mr. Disher, a mid-level recidivist trafficker of heroin adulterated with fentanyl.": at para. 30.

[29] Mr. Tooke submits that the amount possessed by Mr. Belanger was 10 times that in Disher, and that a 10-year sentence is warranted for Mr. Belanger.

[30] In R. v. Margerison, 2020 169 W.C.B. (2d) 167, R. Gee J. sentenced an offender who pleaded guilty to trafficking in fentanyl to eight years of imprisonment and to six months consecutive for possession of ammunition and breach of recognizance. The court emphasized the dangers of fentanyl and, specifically, in the Brantford community. The offender had a large quantity in his possession (44 grams), he had a criminal record with prior drug trafficking offences, and he was operating his drug trafficking enterprise out of a home with a three-year old child present. Mr. Tooke points out that Mr. Belanger possessed ten times more fentanyl than Mr. Margerison, that this was Mr. Belanger's second possession for the purpose of trafficking offence, and that he pleaded guilty to the trafficking offence. Together he says, these factors justify a global sentence of 10 years.

[31] Crown counsel further relies on the decision of R. v. Schramek, 2021 ONSC 436, 169 W.C.B. (2d) 478, where Justice Christopher M. Bondy sentenced a 37-year-old offender who pleaded guilty to one count of possession of fentanyl for the purpose of trafficking, possession of property obtained in the commission of an offence, possession of methamphetamine and cocaine and two counts of possession of a prohibited weapon to a global sentence of seven and a half years of imprisonment. Mr. Schramek did not have a criminal record at the time of the offences, and he pleaded guilty early in the process. He was 37 years old and was addicted to drugs; his drugs of choice were opioids. The aggravating factors identified by the court were the quantity of drugs found, the nature of the drugs seized, that fentanyl was mixed with other drugs and that the drugs were found in a living room where children played: at para. 47. The mitigating factors were that he was remorseful, had no prior criminal record, had supportive family and was a good candidate for rehabilitation: at para. 46. Justice Bondy highlighted the particular hazards of fentanyl and noted jurisprudence where the courts have sentenced offenders for possession of fentanyl for the purpose of trafficking or trafficking in fentanyl to approximately eight years of imprisonment.

[32] Mr. Tooke submits that Mr. Belanger has a criminal record, the guilty plea was not early in the process, and he had twice the amount of fentanyl in his possession.

[33] In R. v. Kochanska, 2020 ONCJ 385, 166 W.C.B. (2d) 202, the offender pleaded guilty to three trafficking charges primarily involving over 12 ounces of combinations of carfentanil, fentanyl and heroin. He was 26 years old and had a trafficking-related criminal record and a firearms conviction for which he received lengthy custodial terms. He was considered a middle to high level trafficking offender. He was not an addict. Given the nature and quantity of the drugs and the commercial nature of the operation, he was sentenced to 11.5 years of imprisonment less credit for time served and credit for harsh pre-sentence custodial conditions: at para. 82. Mr. Tooke points out that in that case, the drugs in his possession had enhanced toxicity and he was not an addict.

[34] Crown counsel further relies on R. v. Dae-Shawn Wisdom and Jason Wisdom, 2024 ONSC 4047, where, following a jury trial, Code J. sentenced Dae-Shawn Wisdom ("DW"), who was convicted of multiple drug counts and a proceeds of crime count, to a total sentence of seven and a half years less credit in accordance with R. v. Summers: at para. 65 and Jason Wisdom ("JW") received a sentence of 17 years for multiple drug counts, proceeds of crime count, firearms counts and a count for breach of bail term prohibiting possession of weapons: at paras. 3, 63. Police executed a search warrant and located fentanyl and cocaine in an ottoman in the second-floor landing area. In this area, they found 293.4 grams of fentanyl; 146.99 grams of cocaine; and 330.91 grams of the cutting agent, phenacetin, found to be in the exclusive possession of JW. In the kitchen, they found 63.48 grams of fentanyl; 28.02 grams of methamphetamine; and 13.09 grams of powder cocaine (which was determined as being in the joint possession of the two accused); as well as 14.21 grams of crack cocaine, found to be in the exclusive possession of JW. In the car, they found 31.97 grams of fentanyl and 18.93 grams of cocaine, determined to be in the possession of DW.

[35] Code J. outlined the differences in the positions of the two accused. JW was 36 years old and DW was 25 years old and had a less serious criminal record than JW. JW had three prior convictions for possession for the purpose of trafficking. The drugs were in proximity to a child. The quantities showed a sophisticated mid-level operation. Only JW was convicted of the firearm offence and possession of the largest amount of the drugs. Because of the factual differences and the differences in their criminal antecedents, Code J. determined that JW must receive a significantly longer custodial sentence than DW. He held that JW's possession of the 356.88 grams of fentanyl for the purpose of trafficking placed him in the higher Parranto and Felix range of eight to fifteen years and that his recidivism and the gravity of his possession justified a 12½ year sentence sought by the Crown. The court, applying the totality principle, sentenced JW to 17 years. Justice Code noted that mitigating factors included that JW had completed high school, had a racialized background, and experienced a difficult childhood and that he had been in pre-sentence custody in triple bunking. The aggravating factors were that he had three different substances in his possession, that he was being sentenced after trial and that the purity of the substances made the value of the drugs much higher. Code J. also found that DW's possession of 95.45 grams of fentanyl for the purpose of trafficking placed him in the seven to ten-year range. While he was a recidivist, he was younger and had a lesser role than his co-accused. He was sentenced to eight and a half years for this offence. This time was reduced to seven and a half years after applying the totality principle: at para. 65.

[36] Mr. Tooke argues that the sentence proposed in the case of Mr. Belanger of 10 years is justified. Mr. Tooke says that this should include the trafficking count, although that offence occurred on a different day.

[37] Finally, Mr. Tooke submitted the case of R. v. Ovedi, 2021 ONCA 518 where the appellant was 33 years old, was treated as a first offender, was a heavy drug user, the quantity of drugs was significant, and he was convicted of both importing fentanyl and possession of fentanyl for the purpose of trafficking. He had been sentenced to a global sentence of 15 years for importing fentanyl and for possession of fentanyl for the purpose of trafficking. The Court of Appeal dismissed the sentence appeal. The quantity of the drugs was 499.5 grams of 100% fentanyl citrate worth upwards of $19 million sent from China to the appellant's residence in Brampton Ontario. The Court of Appeal highlighted the dangerous nature of fentanyl and held that the trial judge's assessment of the seriousness of the offences and the aggravating and mitigating circumstances was entitled to deference on appeal and upheld the sentence imposed. Mr. Tooke points out that the amount of fentanyl involved in the case of Mr. Belanger is similar to the Ovedi case.

[38] To summarize, Mr. Tooke highlights the aggravating factors which include the nature of the substances; the extreme danger of fentanyl and its harm to society; the quantity involved (408 grams); that Mr. Belanger has a prior CDSA record and was serving a sentence when these offences were committed; and that he admitted the fact that he trafficked three times to an undercover officer although he pleaded guilty to one count. That he was working as a runner in a commercial drug dealing operation is not mitigating and he had opportunities to take treatment. As for mitigating factors, Mr. Tooke submits that Mr. Belanger pleaded guilty, although not early on, and that he is an addict (although this is not a street level trafficking situation to feed an addiction). He argues that 10 years is the appropriate sentence, based on the case law and the circumstances of the offender. He asks the court to impose a sentence of three years concurrent for the trafficking offence.

Position of the Defence

[39] Defence counsel, Mr. DiClemente, asks the court to impose a sentence of six years of imprisonment inclusive of Duncan credit but not inclusive of credit for pre-sentence custody since June 23, 2023.

[40] Mr. DiClemente points out that Mr. Belanger is a Canadian citizen and is of Indigenous background through his father, although no registration could be confirmed. He has a partner, Lucia, who is supportive. Mr. Belanger was subjected to physical and emotional abuse by his father. He was exposed to alcohol and drugs from the age of 12. Eventually, this led to addictions to crack cocaine and crystal meth. He used fentanyl to moderate the drug use. In his 20's, Mr. Belanger was diagnosed with bipolar affective disorder.

[41] Mr. Belanger was convicted of simple possession and then possession of methamphetamine for the purpose of trafficking in 2022 for which he received a conditional sentence. Counsel advised that he is now connecting to his heritage while in custody. Mr. Belanger has been sober since his arrest on June 23, 2023.

[42] Mr. DiClemente described Mr. Belanger as not a traditional addict dealer. He was addicted to fentanyl which he was given by DJ (whom he knew as JD), and whom he had met through a friend. Mr. Belanger had run out of money, and he was asked by JD to do him a favour. That is how he became involved in becoming a runner and selling the fentanyl to the undercover officer. Counsel emphasizes that police did not locate any money in his apartment when they searched it. The only money on Mr. Belanger's person was the $200 police buy money and $50 from ODSP. There was no safe in the apartment. Mr. Belanger was paid with drugs for his services. He never arranged any of the drug deals. Defence counsel submits that while he is not saying that Mr. Belanger had no knowledge of the fentanyl trafficking operation, his involvement as a runner was to support his drug addiction and not for financial gain. Thus, his role was at the lowest level of moral culpability for this offence.

[43] Counsel for Mr. Belanger argues that while the jurisprudence may suggest a higher range of sentence, the court may depart from a range depending upon the unique circumstances of the case. There is no minimum sentence prescribed by Parliament and it is recognized that every sentence must take into account the circumstances of the offence and the offender. He submits that a sentence of six years will achieve the principle of general denunciation and deterrence.

[44] Mr. DiClemente reviewed each of the authorities submitted by Crown counsel and distinguished them. In Parranto, there was a large-scale wholesale operation where the offender was arrested with fentanyl and $35,000 cash. There was a further arrest of 450 grams and $20,000 cash with guns found at the scene. Mr. DiClemente submits that the range described in that case represents non-binding guidance for similar cases.

[45] In MMA, the offender had multiple drugs and $9,930 cash, the operation was for profit and the offender was not an addict or vulnerable person.

[46] In Gil, the offender was found in possession of fentanyl and $10,000 cash, the possession was a few doors from a daycare centre, the offender had a criminal record, was not an addict or vulnerable person, and was involved in trafficking for monetary gain. In Disher, the offender, who received an eight-year sentence, was a mid-level recidivist trafficker for profit who had his own operation and a serious related record with a previous possession of fentanyl. In Margerison, the offender who was sentenced to eight years of imprisonment, was trafficking fentanyl out of his home with a child in the residence, and had two previous trafficking fentanyl offences on his record.

[47] In the case of Schramek, the offender had two previous possession of a prohibited weapon and possession for the purpose trafficking offences; was involved in a significant trafficking operation; and was found in possession of cash and a counting machine, showing the commercial aspect of the trafficking. He was storing the drugs in the living room where children played, and two weapons were found near the children's toys.

[48] In Kochanska, the offender was in possession of 340 grams of carfentanyl and heroin and over one kilogram of cocaine; had a record for trafficking of fentanyl and guns; did not have addiction issues, and was trafficking for commercial reasons.

[49] In Wisdom, the offender was convicted of seven counts of possession for the purpose of trafficking in different drugs and was involved in a sophisticated mid-level trafficking operation. In Ovedi, after trial, the offender was sentenced for importing and possession of almost 500 grams of fentanyl and had $55,000 cash in his possession arising from a wholesale commercial operation.

[50] In summary, and in contrast to the cases outlined above, Mr. DiClemente submits that Mr. Belanger was not involved in trafficking for commercial gain; that he was not the person who had arranged the drug sales with police; and that he was a runner who possessed 409 grams of fentanyl, scales and bags for distribution, but had no money counter or safe. He was strictly receiving drugs to feed his addiction. For these reasons, counsel submits a six-year sentence is appropriate. Counsel points to his letter to the court explaining how he ended up in these circumstances to support his drug habit.

[51] Mr. DiClemente noted Mr. Belanger's time in custody which he submits equals 695 days. The letter from Mr. Belanger describes that he has had dental problems but has only gone to see the dentist one time and despite his requests, has not been taken back to the dentist. At the Toronto South Detention Centre, he has experienced mice, bugs and mould in the cells and showers. He has been stripped and, on an occasion, he was taken to the range in shorts, and it took weeks to get shoes and a jumper. It had taken three days to get sheets and blankets. He was transferred to the Toronto East Detention Centre on December 4, 2024, and remains there. He says that he has swollen feet and ankles. He broke his elbow and was given a sling. While it is not healing well, he does not want to return to medical segregation as it affects his mental health. He is concerned that he has been exposed to a person with tuberculosis on the unit.

[52] Mr. Belanger has taken steps towards his rehabilitation. He attended Alcoholics Anonymous, a 12-step program with John Howard Society and he has been offered a volunteer position. He has been accepted for counselling and has been referred upon his release. While Crown counsel says that he did not take advantage of opportunities in the past, there is no indication that programs of counselling were made available to him during previous incarcerations. Mr. Belanger says that he is now attempting to be productive while in custody.

[53] Counsel for Mr. Belanger notes that there are errors in the records sent to the court from the Toronto South Detention Centre and the Toronto East Detention Centre. He attempted to subpoena records, but only received the materials filed with the court which show errors in the dates when Mr. Belanger was at the Toronto South Detention Centre and the Toronto East Detention Centre. Nonetheless, the records do show that he was subject to lockdowns at both facilities. Mr. DiClemente asks that the conditions of pre-sentence custody be taken into account as a mitigating factor to arrive at the six-year sentence. Counsel does not oppose the ancillary orders sought by the Crown.

Analysis and the Law

[54] Before turning to the specific circumstances of this case, I must first consider the general sentencing principles that apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section which include denunciation of unlawful conduct; deterrence of the offender and other persons from committing offences; separating offenders from society where necessary; rehabilitation of offenders; providing reparation for harm done to victims, or to the community; promoting a sense of responsibility in offenders; and acknowledgement of the harm done to victims and the community.

[55] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity reflected in s. 718.2(b) of the Code. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh, otherwise known as the principle of totality reflected in s. 718.2(c). The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders. These are known as the principles of restraint reflected in ss. 718.2(d) and (e).

[56] I now turn to the relevant jurisprudence on sentencing applicable to the offences in this case. In cases involving persons convicted of trafficking and possession for the purposes of trafficking in controlled substances, the courts have ruled that deterrence, and the protection of the public are of paramount consideration. The nature and quantity of the drug are relevant to the issue of sentencing. Whether there is a significant element of commercialism, the role of the offender and the circumstances of the offender are all relevant considerations. In passing sentence, the court may consider the well-being of younger but presently uncommitted potential users of drugs and in so doing, impose a sentence which emphasizes the protection of the public. The court will also look to the circumstances of the offender, including whether the offender has an addiction to drugs.

[57] Cases involving possession for the purpose of trafficking where the drug is fentanyl often attract sentences that can be in the range of between six and nine and a half years where the amount of fentanyl is significant with some exceptions: see R. v. Sidhu, 2019 ONCA 880, 159 W.C.B. (2d) 204; R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88; R. v. Boose, 2023 ONCA 493, 2023 W.C.B. 1023; R. v. Loor, 2017 ONCA 696, 141 W.C.B. (2d) 618 and R. v. Smith, 2023 ONCA 500, 89 C.F.R. (7th) 297. In Loor, the Ontario Court of Appeal upheld a conviction and a sentence of six years for three counts of using a forged document (the prescription) and three counts of trafficking in fentanyl (45 patches). Justice Laskin wrote at para. 33: "Unless used for therapeutic purposes, under proper medical supervision, fentanyl is a highly dangerous drug. Its widespread abuse, though recent, has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians."

[58] Justice Laskin went on to discuss how potent and, therefore, dangerous fentanyl is. He considered the various aggravating and mitigating factors in the case. He also noted that few fentanyl trafficking cases had reached the court at that time but said, at para. 50, "offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences."

[59] In R. v. Owusu, 2024 ONSC 671 Code J. reviewed the decisions of R. v. Disher and Weaver and R. v. Loor and noted that those cases involved smaller quantities of fentanyl possessed by street-level traffickers. He held that Mr. Owusu had to receive a longer sentence in respect of the principle of parity given that he was in possession of 127.75 grams of fentanyl, and he would be considered a "mid-level trafficker". He sentenced him to nine years which was reduced because of the totality principle.

[60] In Parranto, the Supreme Court of Canada upheld that the Alberta Court of Appeal correctly intervened where it found that the sentences imposed at first instance were demonstrably unfit for cases of largescale fentanyl trafficking and that severe penalties involving double-digit penitentiary terms were appropriate: at para. 68.

[61] While the case at bar may be somewhat different from the largescale commercial trafficking in fentanyl cases, the comments of Justice Moldaver in Parranto are nonetheless relevant regarding the dangers posed by trafficking in hard drugs, including direct and indirect harms to society that include overdose and death. He wrote that heavy penitentiary sentences are appropriate for offenders who have trafficked in large quantities of fentanyl. However, he did go on to say, at para. 99, "my comments that follow do not apply to sentences for street-level trafficking, or where traffickers are motivated by a need to support their own addiction." Thus, while the range of sentence discussed by the Supreme Court in Parranto of eight to ten years may seem somewhat applicable to the case at bar and the comments regarding the consequences of fentanyl trafficking and the dangers of this drug are pertinent, the appropriate sentence may be somewhat less where the offender is a user and trafficking is motivated by a need to support a drug habit.

Decision

[62] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 44. The sentencing process is an individualized one, but the court must remain mindful of the jurisprudence regarding similar offences committed by similar offenders in similar circumstances. As the courts have said, sentencing ranges are not "straightjackets": R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 57.

[63] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Belanger.

[64] Mr. Belanger is 39 years of age and was born on December 3, 1985. He is the only child born to his parents and the third child born to his father. He had two older half-sisters, one of whom is deceased. He has two younger half-sisters along with a younger half-brother. He does not have contact with his siblings. Mr. Belanger is of Indigenous background.

[65] His parents separated when he was four years old but continued to reside together until he was eight years old. He speaks to his father once a month. He was raised by his mother and lived with her until he faced criminal charges.

[66] He described his childhood as "rough" saying his mother would be out each night and his father would get drunk and abuse him mentally and physically. This lasted for a period of time until he complained to his mother. His father would also leave him at home alone to go consume alcohol with his friends. Mr. Belanger reported to the probation officer that his mother was in a mental institution from the age of 13 to 21. Her brother killed her dog and she tried to set her brother on fire.

[67] Mr. Belanger had been in a relationship with his girlfriend for six years at the time the pre-sentence report was written in 2022. They have no children. She had an eye condition and was legally blind for a number of years. During this time, Mr. Belanger was very helpful in accompanying her to appointments and being her caregiver. Mr. Belanger is close to his mother who suffers from lung disease and arthritis. Mr. Belanger has a daughter who is now 15 years old from a previous seven-year relationship. He is not involved with his daughter.

[68] Mr. Belanger stopped attending school after grade 7 and was placed in a special education program at a smaller school where he completed grade 8. He dropped out of school after completing grade 9. He was suspended a few times for fighting and was bullied. He now would like to obtain his high school diploma to have better employment opportunities.

[69] Mr. Belanger worked from the age of 14 to 18 as a cleaner at an annual event for two weeks at the end of the summer and worked for a movie production company for four months, at the age of 16, but was fired. Prior to his arrest, he was receiving Ontario Works from the age of 18 and was unemployed. Mr. Belanger was exposed to beer and marijuana at the age of 13, smoked crystal methamphetamine at the age of 14 and from the age of 18 to 24, he used all types of drugs. In 2020, he started using fentanyl which he said he continued to use to avoid withdrawal symptoms from other drugs. He was using marijuana daily. He drank beer heavily between the ages of 19 to 25. He cut down because he was experiencing black outs.

[70] The probation officer found Mr. Belanger to be "cooperative and forthcoming with information." He was remorseful and said he should find other ways to support his drug use or quit altogether. He told the probation officer that he was willing to attend counselling. He had also advised the probation officer that he was diagnosed with attention deficit hyperactivity disorder (ADHD) while he was in school. He refused to take Ritalin. At the age of 15, he was diagnosed with bipolar manic depression and had suicidal tendencies. He was prescribed medication which he said made him feel like a "zombie." He soon stopped and self-medicated with marijuana which he said he smoked approximately six times daily. He was sent for another assessment when he was in his early 20's due to mood changes. He was diagnosed with bipolar disorder and multiple personalities but was not prescribed medication. He is not under the care of a psychiatrist and is not taking medication. He has not seen his family physician for a few years.

[71] Mr. Belanger had been on a period of community supervision for one year from September 2013 to 2014 for fail to comply with recognizance and possession of a Schedule II substance. He was cautioned for his poor reporting habits and directed to attend counselling. He did not attend more than the intake appointment.

[72] The probation officer who completed a pre-sentence report on September 13, 2022, recommended counselling to address his substance abuse and mental health concerns. In the letter of Lucia Lamanna, Mr. Belanger's partner for the last 10 years, she described him as a "kind, honest and responsible individual" and she says that he expressed sincere remorse for his actions and is actively taking programs to address his addiction. In a letter from Rev. Michael Gomes, Executive Director of Freedomcity Ministries, dated January 28, 2025, he says that the organization would be happy to have him serve as a volunteer once he is released from custody. He has known Mr. Belanger for almost 10 years through his mother. The organization serves low-income communities in Toronto and provides food and other resource to those communities. Mr. Belanger's counsel submitted a certificate of completion for a substance abuse program, taken on April 17, 2024; a certificate for a drug and alcohol awareness program, taken on May 8, 2024; and a certificate for a program called Overdose Recognition and Response, taken on July 16, 2024.

[73] In the case at bar, there are many factors in mitigation including that Mr. Belanger pleaded guilty to the charges and has expressed remorse. He is taking responsibility for his actions. He has saved valuable court resources at a time when resources are scarce in the aftermath of the COVID-19 pandemic. Mr. Belanger has support in the community, with his partner Lucia, and through his connection to the church. He has taken some steps towards rehabilitation in addressing his drug addiction and emotional issues.

[74] The aggravating factors include the nature of the drug involved in these offences, the quantity of the drugs, and the effect of this type of drug on the public. Fentanyl is one of the deadliest illicit substances. The prevalence of fentanyl in the community is of grave concern. Mr. Belanger played a key role in the drug trafficking operation by acting as a runner. Of particular note, is that he was committing these offences while serving a sentence of possession of methamphetamines for the purpose of trafficking as a conditional sentence in the community.

[75] Sentences for these offences must emphasize the objectives of denunciation and deterrence. There are a number of cases cited to this court where sentences imposed are for penitentiary terms ranging from eight to 12 years of imprisonment, especially where the amount of fentanyl is significant. However, I am also mindful that there are cases that call for a sentence outside a particular range as ranges are only guidelines. The determination of a just sentence is a highly individualized exercise: Lacasse, at paras. 57 and 58.

[76] For the following reasons, I have determined that this case should be taken out of the range suggested in the jurisprudence. First, I accept both the Crown submission that Mr. Belanger's role as a runner in the drug trafficking operation was a significant one as, without a runner, the drug trafficking operation cannot be implemented. However, I also recognize the defence position that Mr. Belanger had been suffering as a drug addict for years and became involved in drug trafficking of fentanyl in order to feed his habit. The circumstances of what was on his person and in his apartment upon being searched, did not support that he was motivated by financial gain.

[77] Second, I am persuaded that although his registration was not proven, Mr. Belanger is of Indigenous background and that his family upbringing of emotional and physical abuse resulted in him being a vulnerable person. His background of personal hardship should be considered as a relevant mitigating factor.

[78] Third, although the records provided by the Toronto South Detention Centre and the Toronto East Detention Centre were clearly incorrect about the dates when Mr. Belanger has been incarcerated at these facilities, they show that he has been subjected to lockdowns due to staff shortages. During these lockdowns, a prisoner is let out of the cell for a short period of time for a shower and/or a telephone call. As there were a limited number of showers and telephones, often it would have to be a choice of a shower. Mr. Belanger also described harsh conditions in his letter to the court regarding the presence of mice, bugs, and mould, the lack of proper medical and dental care, and that he was required to wait inordinate amounts of time for clothing and blankets. In my view, the circumstances of Mr. Belanger's pre-sentence custody should be considered in fashioning the overall sentence. In deciding whether enhanced credit is appropriate, the court will consider the conditions of the pre-sentence incarceration and the impact of those conditions on the accused: see Duncan, at para. 6. In Marshall, Justice Doherty wrote at para. 52:

Because the 'Duncan' credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[79] I conclude that Mr. Belanger has spent some of his pre-trial custody in extremely difficult conditions through the aftermath of the COVID-19 pandemic and the subsequent staff shortages.

[80] There is considerable jurisprudence on the impact of harsh conditions of pre-sentence custody and courts have expressed concern about the number of lockdown days and the conditions of incarceration at the Toronto South Detention Centre in particular: see R. v. Persad, 2020 ONSC 188, 151 W.C.B. (2d) 179; R. v. Spicher, 2020 ONCJ 340, 166 W.C.B. (2d) 474, at paras. 59-68; R. v. Jama, 2021 ONSC 4871, 176 W.C.B. (2d) 59, at paras. 51, 53 and 55. It seems that the circumstances of incarceration have not changed significantly despite the judicial comments that have been critical of the government for allowing such harsh conditions to exist in the jail.

[81] The courts have held that, "Since Marshall, courts are directed to treat harsh pre-sentence conditions as a mitigating factor to be taken into account with all mitigating and aggravating factors when determining a fit sentence": see R. v. Menezes, 2023 ONCA 838, 432 C.C.C. (3d) 394, at para. 81. In Marshall, Justice Doherty wrote, at para. 53, "While quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence." I conclude that attributing additional credit to recognize particularly harsh pre-sentence conditions in this case and their impact on Mr. Belanger, in particular, does not skew the calculation of the ultimate sentence. Accordingly, I exercise my discretion and I consider the harsh pre-sentence conditions and their specific impact on Mr. Belanger as a mitigating factor in accordance with Duncan and Marshall.

[82] Finally, I am persuaded that Mr. Belanger has been sober since his arrest and with counselling may be able to beat his drug addiction. He has attempted to partake in some programs while in custody and the documentation filed suggests some rehabilitative potential.

[83] I am mindful of the jurisprudence regarding trafficking in fentanyl and possession of fentanyl for the purpose of trafficking. I consider the very serious societal harms of this drug. I recognize the strong direction of the cases in sentencing offenders, particularly where the amount of fentanyl involved is so significant. Cases regarding the appropriate range of sentence for possession of fentanyl for the purpose of trafficking and trafficking in fentanyl emphasize the objectives of denunciation and deterrence. The effect of fentanyl on drug users is a relevant consideration and the courts view the incredibly negative impact of this drug on users and the harm to society as a relevant consideration. While the Supreme Court in Parranto dealt with sentencing for commercial high-level drug trafficking in fentanyl, the court's comments regarding the harm caused by this drug are especially relevant. The jurisprudence cited by the Crown supporting a substantial penitentiary term for possession of fentanyl for the purpose of trafficking and trafficking fentanyl highlight the ills caused by this drug. However, in many of the cases, the offender was involved in the trafficking of fentanyl for commercial gain and the offender was not an addict or vulnerable person.

[84] As the Supreme Court has said, sentencing involves the blending of the objectives of deterrence and denunciation as well as rehabilitation, reparation, and promotion of a sense of responsibility in offenders. I have concluded that Mr. Belanger's role in the offences is somewhat unique. Although he was a runner and an integral part of the operation which included possession of a very large amount of fentanyl, the evidence suggests that he was involved in possession of the drug and trafficking in order to satisfy his own drug addiction and not for profit. This is a distinguishing feature from a number of the cases cited to me by Crown counsel that support a higher sentence.

Result

[85] Accordingly, for these reasons, Mr. Belanger shall be sentenced as follows: for the offence of possession of fentanyl for the purpose of trafficking (count #7), he shall be sentenced to seven and a half years of imprisonment. For the offence of trafficking in fentanyl (count #1), he shall be sentenced to three years imposed on a concurrent basis. The global sentence is seven and a half years which is 2,737.5 days. Mr. Belanger has been in custody from June 23, 2023, until today which equals 766 days. He shall be credited at the rate of 1.5:1 in accordance with Summers which equals 1,149 days of pre-sentence custody. The balance of the sentence to be served as a period of imprisonment is 1,588.5 days or 1,588 days.

[86] I further make an order under s. 109(1) prohibiting Mr. Belanger from possessing any weapon as defined by the Criminal Code for life. I also order that Mr. Belanger provide a sample of his DNA pursuant to s. 487.051 of the Code. Finally, there will be an order of forfeiture of the phones, cash and the black change pouch seized by police at the time of the arrest. In light of the circumstances, the Victim Fine Surcharge is waived.

S. Himel J.

Released: July 28, 2025